Richard S. Kindred v. Allenby et al

Filing 112

ORDER DIRECTING Defense Counsel to Properly Serve Notice of Death or File Brief Within Twenty-One Days, ORDER VACATING Settlement Conference, signed by Magistrate Judge Erica P. Grosjean on 11/1/2022. Notice or brief due within twenty-one (21) days. 1/12/2023 settlement conference before Magistrate Judge Sheila K. Oberto is VACATED. (Rivera, O)

Case 1:18-cv-00554-ADA-EPG Document 112 Filed 11/01/22 Page 1 of 2
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:18-cv-00554-ADA-EPG (PC)

RICHARD SCOTT KINDRED,

ORDER DIRECTING DEFENSE COUNSEL
TO PROPERLY SERVE NOTICE OF DEATH
OR FILE BRIEF WITHIN TWENTY-ONE
DAYS

Plaintiff,
v.
ALLENBY, et al.,

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(ECF No. 111)
Defendants.

ORDER VACATING SETTLEMENT
CONFERENCE

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On October 31, 2022, defense counsel filed a “Notice of Death of Plaintiff Richard Scott

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Kindred,” which states that Richard Scott Kindred (“Plaintiff”) died on October 19, 2022. (ECF

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No. 111).

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“If a party dies and the claim is not extinguished, the court may order substitution of the

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proper party. A motion for substitution may be made by any party or by the decedent’s successor

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or representative. If the motion is not made within 90 days after service of a statement noting the

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death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1).

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The party filing the notice of death (or “suggestion of death”) “must serve other parties

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and nonparty successors or representatives of the deceased with a suggestion of death in the same

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manner as required for service of the motion to substitute. Fed.R.Civ.P. 25(a)(1). Thus, a party

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may be served the suggestion of death by service on his or her attorney, Fed.R.Civ.P. 5(b), while

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non-party successors or representatives of the deceased party must be served the suggestion of

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death in the manner provided by Rule 4 for the service of a summons.” Barlow v. Ground, 39
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Case 1:18-cv-00554-ADA-EPG Document 112 Filed 11/01/22 Page 2 of 2
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F.3d 231, 233 (9th Cir. 1994). “[T]he 90 day period provided by Rule 25(a)(1) will not be

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triggered against [the decedent’s] estate until the appropriate representative of the estate is served

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a suggestion of death in the manner provided by Federal Rule of Civil Procedure 4.” Id. at 233–

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34. “The Ninth Circuit has found that the burden to identify the successor-in-interest or personal

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representative of a deceased party lies with the party best suited to do so, which is typically the

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party that filed the suggestion of death.” Bailey v. MacFarland, 2020 WL 5763825, at *3 (E.D.

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Cal. Sept. 28, 2020) (citing Gilmore v. Lockard, 936 F.3d 857, 866–67 (9th Cir. 2019)).

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Here, it appears that defense counsel did not serve the nonparty successor or
representative of Plaintiff’s estate. (ECF No. 111, p. 2).

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Accordingly, IT IS HEREBY ORDERED that defense counsel has twenty-one days from

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the date of service of this order to serve the notice of death as described above and to file a proof

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of service with the Court, or to file a brief explaining why defense counsel believes she is not

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required to do so.

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IT IS FURTHER ORDERED that the settlement conference set for January 12, 2023, is
VACATED.

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IT IS SO ORDERED.
Dated:

November 1, 2022

/s/
UNITED STATES MAGISTRATE JUDGE

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